BOOK IV.
Chapter 1.

a Sce Westlake, pp. 25, 192, 8QJ.

Ibid. pp. 259, sqq.

eCf. Bluntschli, Theory of the State,' pp. 195, sqq. (E. Tr.).

community (forum originis); after conferment of citizenship upon all Italy the citizens of the municipia had a double forum originis, at home and in Rome, where however an action could alone be maintained in the case of absence (ius revocandi domum).a

Ulp. Municipem aut nativitas facit, aut manumissio, aut adoptio.-1. I pr., ad munic. 50, 1.1

Mod. Roma communis nostra patria est.1. 33 eod.2

(2) By continuous residence in a community (forum domicilii).

Imp. Diocl. Cives quidem origo manumissio adlectio adoptio, incolas vero domicilium facit. Et in eo loco singulos habere domicilium non ambigitur, ubi quis larem rerumque ac fortunarum suarum summam constituit, unde rursus non sit discessurus, si nihil avocet, unde cum profectus est, peregrinari videtur, quo si rediit, peregrinari iam destitit.-C. 10, 40 (39), 7.3

Gai. Incola et his magistratibus parere debet apud quos incola est, et illis apud quos civis est; municipali iurisdictioni in utroque municipio subiectus est.-1. 29, ad munic.c

4

1 A man is made a burgher either by birth, or enfranchisement, or adoption.

2 Rome is our common fatherland.

3 Citizens are constituted by origin, manumission, election or adoption, but inhabitants by residence. And there is no doubt that every one has his residence where he has set up his altar and his establishment, with the intention of not again departing therefrom, if nothing call him away; and when he has left such place, he is considered to be a foreigner, and when he has returned, he has ceased to be a foreigner.

4 An inhabitant must both render obedience to that magistracy amidst which he is an inhabitant, and to that amidst which he is a citizen; and in both municipalities he is subject to the municipal jurisdiction.

§ 189. IUDICES.

In Rome either standing colleges of judges, or, as was the rule, single judges whom the magistrate appointed as jurors for the particular suit, acted as judges in iudicio.a

are

The former are

BOOK IV.

Chapter 1.

a § 187.

(1) The Decemviri iudices s. litibus iudicandis magistratus' (since the seventh century elected by the People) who were originally competent for actions of freedom, but to whom was transferred by § Augustus the conduct of the Centumviral court (centumviralem hastam cogere).

(2) The primeval Court of the Centumviri had in republican times consisted of 105 persons, three chosen out of each of the 35 tribes. It is questionable whether in the most ancient time it was not out of the 30 curiae, to which had to be added 10 members of the Senate, by lot as decemviri, and at the same time decem primi' of the collegium. From the time of Augustus, however, it consists of 180 members, and is divided into four independent sections (hasta, consilium, tribunal, iudicium). They were at first competent for the Vindicationes but Perhaps with principally, and later on exclusively, for suits inheritance, especially upon the validity or affirmation of testaments.d

of

The single judges appointed by the magistrate

(1) IUDICES (privati) or ARBITRI. These were in the beginning taken from the Senators, then indeed from the Knights; but in civil causes a list of jurors had to be set up by the Praetor (album iudicum selectorum) from the time of Augustus, who by his leges Iuliae iudiciariae transferred the judicial office (munus iudicandi) to three decuriae iudicum,' formed for criminal and civil causes, possessed of an equestrian fortune (quatringenarii), and a fourth decuria of the ducenarii' appointed for minor

с

restriction to res mancipi.

d Querela inofficiosi; § 169.

BOOK IV. Chapter 1.

§ 7.

civil causes, to which Caligula further added a fifth decuria. The selection of jurors in the particular case as a rule was effected by agreement of the parties, in which the proposal (iudicem ferre) belonged to the plaintiff, whilst the defendant possessed the rejection upon oath of the person proposed (iniquum eiurare). The person chosen was appointed judge by the magistrate (iudicis datio s. addictio) and was

sworn.

(2) RECUPERATORES are originally the arbitrators in courts of foreigners" constituted by international agreement; later on they appear in the most diverse legal matters of Roman citizens amongst themselves. Three or five were regularly appointed, and in the particular case were chosen by lot (sortitio) and presentation by the magistrate, rejection (reiectio) by the parties being permitted.

Fest. h. v. (p. 274"): Reciperatio est, ut ait Gallus Aelius, cum inter populum et reges nationesque et civitates peregrinas lex convenit, quomodo per reciperatores reddantur res reciperenturque, resque privatas inter se persequantur.'

In the Provinces the judges were chosen by the governor, as a rule, from the Roman citizens domiciled at the place of the Court (conventus civium Romanorum), but also in certain cases, according to the provincial constitution, from the provincials.

$ 190. COURT-DAYS.

As regards the days appointed in Rome for judicial proceedings, we have to distinguish for republican times

1 A reciperatio, according to G. A., is when a lex is agreed upon between a people and kings and nations and foreign States, as to the manner in which things shall be given and received back through reciperatores, and how they shall conduct private matters between themselves.

(a) days on which a proceeding could take place ' in iure' before the magistrate, which were the dies fasti appointed by the Calendar (in the Julian Calendar 55-56): standing court-days, originally the days upon which a legis actio could be entertained, conformably with the fas; in contrast, on the one hand, to the dies nefasti (upon which such a transaction contains a nefas, but other acts of jurisdiction appertaining to the imperium were allowed); on the other, with the dies comitiales, which were free for jurisdiction only if no assembly of the People took place.

(B) For proceedings 'in iudicio' there were no established court-days, but they were restricted as to time by festivals and holidays.

BOOK IV.
Chapter 1.

(2) After the judicial year (actus rerum) had a § 189. been further settled by Augustus, in respect of the services of jurors," it was afresh regulated by Marcus Aurelius, both for the magistrates with jurisdiction and for the iudices, in such way that it henceforth contained 230 court-days (dies iudiciarii). Upon the dies feriati' a valid judicial proceeding could take place alone exceptionally in certain pressing cases (causae exceptae), or by consent of the parties.

་

In the Provinces a court was held (forum, conventum agere) by the governor, or his legatus, or quaestor delegated by him, in the chief places within the limits of his jurisdiction that were most visited by him (conventus), where at times appointed every year assemblies (conventus) took place.

BOOK IV. Chapter 11.

CHAPTER II.

THE PROCEEDINGS.

§ 191. THE COMMENCEMENT OF THE SUIT.

THE opening of the suit required the presence of the parties before the Court. As a rule-in ordinary proceedings-it was the business of the plaintiff to bring the defendant to the Court, in order judicially to make good his claim.

For this purpose, according to the Twelve Tableswith certain exceptions-where he met with the opponent, and without alleging his legal claim, he possessed the in ius vocatio (in case of necessity, accompanied by the employment of force-manus iniectio), with which the party summoned must at once comply, and he could only avoid it by furnishing a Vindex, who took the action upon himself (but cum poena dupli). The Praetorian Edict assured operation to the in ius vocatio by penal actions against the opponent who was unsubmissive, or furnished no vindex, as well as against him that by force withdrew the latter from the in ius. a Gai. iv. 46. Vocatio."

Lex XII tabularum: SI IN IVS VOCAT, ITO; NI IT, ANTESTAMINO: IGITVR EM CAPITO. SI CALVITVR PEDEMVE STRVIT, MANVM ENDO IACITO. SI MORBYS AEVITASVE VITIVM ESCIT, IVMENTVM DATO; SI NOLET ARCERAM NE STERNITO. ADSIDVO VINDEX ADSIDVVS ESTO; PROLETARIO (CVI? IAM CIVI?) QVIS VOLET VINDEX ESTO.1

1 A man when summoned before a magistrate, shall go; in default of his going, let the plaintiff call bystanders to witness: then shall he take him. If he shirks or runs away, the plaintiff shall lay hands on him. If illness or age be an impediment, the plaintiff shall provide a beast of burden; if the defendant refuse, the plaintiff need not provide a carriage. The protector of a landowner must be a landowner; whosoever likes shall be protector to a citizen that is a proletarius (of the lowest class).